This article published in the Association of Corporate Counsel's South Carolina newsletter.
As COVID-19 restrictions ease, companies across South Carolina are in various stages of planning for how they will handle in-person and remote work going forward. This planning requires consideration of a range of legal and employee relations issues, including vaccination policies and information collection, accommodating employees unable to return for medical or other reasons, evolving guidance from the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA), and employee leave and travel issues. As companies adjust to their next normal in managing their workforces, here are some tips and traps to consider.
‘How Do We Handle Employees Who Want to Keep Working From Home?’
Many companies have more than a year of evidence that employees can do their jobs from home. But that does not necessarily mean employees are doing their jobs as effectively as they were pre-pandemic or that something has not been lost in terms of culture – two points we often hear from clients. We are getting questions on an almost daily basis about how companies should handle employees’ requests to keep working from home.
If an unvaccinated employee requests to work from home, it is perfectly appropriate to ask for more information about the reasons for the request, as well as whether the employee plans on getting vaccinated. If the employee cannot be vaccinated for religious or medical reasons, follow your normal process for documenting and obtaining proof of the stated reason for the request. If the employee is able to provide support for an ongoing, effective accommodation and it would not cause an undue hardship on your company, the request should be granted. As for defining “undue hardship,” the Equal Employment Opportunity Commission (EEOC) generally requires companies to show a concrete business impact – vague arguments about collegiality and the need for collaboration may not cut it.
If an employee simply does not want to get vaccinated and does not have a religious or medical reason, companies do not have a legal obligation to grant that request. The same goes for vaccinated employees who do not want to come back to the office. These scenarios are more of an employee relations issue than a legal one, and we recommend that employers have discussions with any employee who has expressed hesitancy about returning to the workplace in order to assess what might make them more comfortable returning.
These discussions are also a chance to point out the precautions the company is taking, including enforcement of its mask or vaccination policy (more on that below). In some cases, investing the time to make a hesitant employee more comfortable is all it takes. Depending on the size of your organization, consider designating a point person in HR to have these kinds of conversations with employees. It is important that messaging be consistent. Maintaining documentation of safety procedures and employee communications can also help defend against a whistleblower claim from an employee who claims that they were disciplined or fired for complaining about COVID-19 issues.
In addition, allowing employees to gradually increase their time back in the office can make a big difference with their comfort level. Providing employees with lead time and clear expectations helps them to make arrangements for their kids, pets, transportation, and other needs.
If a company has taken the steps above and an employee still refuses to return to the workplace – and there is no medical or religious reason for the person not to be there – it is within an employer’s rights to require an employee to be physically present in the workplace to continue employment. However, in making such a decision, employers must be prepared and willing to apply the policy evenly across the organization.
‘How Should We Approach Vaccines With Our Workforce?’
Although companies can legally require their employees to receive a COVID-19 vaccine as long as they allow for religious and medical accommodations, many businesses have decided not to for practical reasons. Several surveys show that about a quarter of American adults still say they will not get vaccinated. Given the challenge many companies face in finding qualified workers, many employers opt not to implement mandatory vaccine policies for fear of losing a significant portion of their workforce.
Companies, however, should not be deterred from encouraging their employees to get the vaccine. Employers should consider ways to meet hesitant employees where they are and help them feel more comfortable about getting the vaccine. This may include partnering with health care providers to offer a pop-up clinic or a lunch-and-learn, as well as providing paid time off to receive the vaccine. Some companies are offering small gift cards to restaurants for those who receive the vaccine, which both incentivizes employees and helps a hard-hit local industry.
Whether companies make vaccination mandatory or not, they can ask employees about their vaccination status. Knowing whether employees have received the vaccine is an important part of planning for the future, including whether a company should adjust its mask policy. However, employers should avoid asking further questions that elaborate on why the employee chose not to receive the vaccine. Such questions could elicit information about health or disability. EEOC guidance states this type of inquiry may cross the line and lead to liability under the Americans with Disabilities Act (ADA) or other regulations.
‘Can We Drop the Mask Mandate for Employees?’
South Carolina is among the states that have dropped their statewide mask mandate, leaving it to employers to decide what is best for their specific businesses. Many companies have begun lifting the mask requirement for employees who are fully vaccinated based on the updated guidance from the CDC.
As for unvaccinated employees, the lowest risk option is to continue requiring them to wear masks at least until the CDC’s guidance on that changes. In addition to following scientific guidelines, this allows companies to say, “Don’t blame us for the distinction: we’re following the government’s guidance.” This also creates another incentive for employees to receive the vaccine. However, practically, employers may not be able to maintain all-employee mask mandates given the CDC guidance.
How should companies keep track of who is vaccinated and who is not? Some businesses are using the honor system while others are requiring proof of vaccination, such as the employee showing their vaccination card. The honor system gives employees who do not feel safe coming into work a stronger argument for being allowed to work remotely. But, any such argument is likely unpersuasive if their job cannot be done remotely or if the CDC and OSHA change their guidance for businesses.
If a company does require proof of vaccination, it should keep a log of employees who are allowed to remove their masks (including those given medical and religious accommodations) without keeping copies of vaccination records. Storing vaccination records potentially triggers medical records confidentiality requirements, as well as an OSHA rule that requires employers to maintain medical monitoring records for the duration of that person’s employment plus 30 years.
Regardless of an employer’s policy on masks, the policy must be consistently applied and enforced. OSHA is much less likely to issue a citation or a fine in response to a complaint about a consistently enforced policy.
‘Can We Require Employees to Travel for Business Purposes Now?’
Many employers are wondering what policies should be in place regarding travel. Requiring employees to travel domestically is most likely permissible as long as companies provide accommodations in accordance with the ADA. Employers should confirm that employees are aware of the current regulations and guidelines at the various locations they will be visiting.
What if the client or vendor your employee is traveling to requires its visitors to be vaccinated? It is reasonable for your company to comply with that policy, although it may require an accommodation for an employee who has a religious or medical reason for not getting the vaccine. That accommodation could be traveling to a different site or being put in an alternative role. This could get sticky if there are no other positions available. But at that point, it could be considered an undue hardship on the employer and no longer would be required under the ADA.
Companies may keep a list of vaccinated employees who are allowed to travel. However, as noted above, it is important for employers not to store copies of their employees’ vaccination cards, as that may open an administrative can of worms with OSHA.
Takeaways
The bottom line is that many South Carolina companies are heading back toward more normal operations, and by being aware of certain tips and traps, they can do so while minimizing legal risks.
The federal and state guidance on the issues described above continues to evolve. Employers must continue to monitor announcements and guidance from OSHA, the CDC, and the EEOC, as there are outstanding questions each agency is working to address. One way you can stay current is by subscribing to our weekly employment alert called EmployNews.